Company Terms & Conditions Terms & Conditions
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General Terms and Conditions
of
ST - SIMTOOLS GmbH (Version V1.5, 2010)
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www.simtools.at
PART I: General 1. Applicability: 1.1 These General Terms and Conditions ("GTCs") of ST - SIMTOOLS GmbH ("ST") shall govern ST' provision, delivery, and/or licensure to the contract partner ("Partner") specified in the ST binding offer or confirmation letter of one or more deliverables ("Deliverables"): (a) Software under license, Support services, Subscription (see Part II of the GTCs), (b) Software and Hardware development and Integration services (see Part III of the GTCs), (c) Hardware including Firmware (see Part IV of the GTCs), (d) Training services (see Part V of the GTCs) and/or (e) any use and access by the Partner of the ST website (see Part VI of the GTCs). 1.2 Terms and Conditions of the Partner shall only apply insofar as they have been expressly approved in writing by ST. Provisions, which differ in wording from the GTCs of ST - to the extent that they are not stipulated in the ST offer - shall not apply and shall be null and void. 2. Offer and Confirmation Letter: 2.1 The Deliverables shall be exclusively and conclusively set forth and specified in the ST binding offer or the ST confirmation letter to the Partner. 2.2 ST retains all proprietary rights and copy rights to images, drawings, plans, etc enclosed with the ST binding offer. The documents may only be made accessible to third parties following the prior approval of ST and shall be returned to ST without delay if the order is not placed with ST. Any right of the Partner to withhold these is explicitly excluded. 2.3 ST is bound to the offer for a period of 30 calendar days starting from the date of the offer. 2.4 The contract between ST and the Partner shall be effective upon the Partner's acceptance of the ST binding offer or the Partner's receipt of the ST confirmation letter in response to and confirming a purchase order issued by the Partner. 3. Prices, Transfer of Risk: 3.1 The prices are quoted ex headquarters of ST. 3.2 The prices are net prices in EURO exclusive of the legally valid value added tax at the time of the delivery without any deductions. 3.3 Invoices including VAT shall be payable free of charges no later than 14 days after receipt of the invoice. Invoices for partial shipments are subject to the payment terms fixed for the entire shipment. 3.4 Should the Partner not make the agreed payments, ST may discontinue ongoing work and delivery of work and terminate the contract after written notice to the Partner. 3.5 The Partner may not withhold payments on the grounds of incomplete total delivery, guarantee or warranty claims or complaints. 3.6 Upon provision, delivery, and/or licensure of the Deliverables, ST shall be entitled to invoice the Partner therefore. Where Deliverables comprise a number of units (e.g., software, training sessions, completion in stages), ST is entitled to submit an invoice after the delivery of each unit or service. 3.7 If the Partner is in default of payment ST may claim default interest amounting to 8% over the base interest rate pursuant to Article1333 Section 2 of the Austrian Civil Code. 3.8 Partner may only set off payments against claims made by the Partner against ST, which are either undisputed or legally established. 4. Assignment: 4.1 Either party may assign a contract to an entity acquiring substantially all of its assets or merging with it, provided that such assignee agrees in writing to assume all obligations under the contract. Except as set forth above, neither party may assign any of its rights or delegate any of its obligations to any third party without the express written consent of the other. 4.2 Any attempted assignment in violation of the foregoing shall be void and of no effect. Subject to the above, the contract shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 5. Disputes: 5.1 The laws of the Republic of Austria exclusively apply without giving effect to principles of conflicts of laws. Any suits brought hereunder may be brought in the Commercial Court of Vienna, Austria, the Partner submits to the jurisdiction thereof. The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods, if applicable. 5.2 The Partner acknowledges that Deliverables may contain patents, copyrights, and/or trade secrets, the violation or disclosure of which would cause substantial harm to ST that could not be remedied by the payment of damages alone. Accordingly, ST will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of ST' intellectual property rights in the deliveries. 6. Severability 6.1 If any provision of the GTCs shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect. 6.2 The parties hereby agree to replace any provision, which was held by a court of competent jurisdiction to be contrary to law by a valid clause, which materially reflects the intention of the parties at the time of agreeing upon the clause subject to replacement in the best possible manner. 7. Force Majeure: 7.1 If the performance of contracts, or any obligation hereunder, except the making of payments, is prevented, restricted, or interfered with by reason of any act or condition beyond the reasonable control of ST, ST will be excused from performance to the extent of such prevention, restriction, or interference. 8. Delivery: 8.1 ST may effect deliveries in electronic form via electronic data transfer or on electronic media. Upon Partner's request and at Partner's cost delivery can be effected at the Partner's site. Unless otherwise agreed, the delivery does not comprise installation and demonstration of the Deliverables and their operations. 8.2 In case of delayed delivery ST will inform the Partner as soon as possible. If ST is in default of delivery the Partner is entitled to claim a compensation of 1% of the value of the delayed delivery for every month of default, up to a maximum of 5%. 8.3 Risk in the electronic media shall pass on to the Partner on delivery. If any part of the media shall thereafter be lost, destroyed or damaged, ST shall promptly replace the same (embodying the relevant part of the licensed programs or program documentation) subject to the Partner paying the cost of such replacement. 9. Warranty: 9.1 ST warrants that the Deliverables will conform in all material respects to their written specifications when delivered. The sole source of such specifications shall be ST' user documentation ("User Manual") for: (a) Software under license including Subscription and Support services (Subscription Agreement) (see Part II of the GTCs) and (b) Hardware including Firmware (see Part IV of the GTCs), which User Manual is either provided as a written booklet or as a document on permanent data carrier, as disk, CD-ROM, web server, mailing list, etc. (c) For software development and integration services (see Part III of the GTCs), the sole source of such specifications shall be the Project Development Plan, which is part of the ST binding offer or confirmation letter. 9.2 Warranty claims are subject to a limitation period of one year after delivery. Where a material nonconformity covered under warranty set forth in 9.1 arises within the warranty period and proper and immediate written notice has been given to ST, ST complies with its warranty obligations solely in the manner set forth in 9.4 below; provided, however, that the Partner complies with the condition set forth in 9.3 below. 9.3 As an express and continuing condition to ST' compliance with its warranty obligations set forth in 9.4 below, the Partner shall provide ST with complete and unfettered onsite and/or remote access to the Partner's operating environment, including its business premises, software, hardware and products to enable ST and/or its representatives to analyze, diagnose, and remedy the material nonconformity covered under the warranty set forth in 9.1. The determination of which aspects of the Partner's operating environment to access or the determination of whether to take onsite or remote warranty compliance actions shall be at the sole discretion of ST. Furthermore, the Partner shall provide ST with reasonable assistance with ST' warranty compliance actions. Without limiting the generality of the foregoing sentence, the Partner shall support ST in diagnosing defects by applying and testing patched software modules on the Partner's hardware systems. 9.4 In the event that Deliverables do not operate as warranted, the Partner's exclusive remedy and ST' sole obligation under this warranty shall be: (a) the correction of or delivery of a work around of the material non-conformance within a reasonable time, (b) the delivery of a replacement Deliverable to the Partner, or (c) should such correction, work around or replacement prove neither satisfactory nor practical, termination of the contract and refund of the charges paid for the Deliverable. 9.5 Minor divergences from the stipulated specifications, a minor impairment of the usability, and damages that occur after the risk transfer due to incorrect use or treatment or due to the use of other software or hardware that is not compatible with the Deliverables shall not constitute a basis for claims due to defects under warranty. In case the Partner or third parties perform inappropriate modifications or maintenance tasks, these and the ensuing results will not be eligible for claims due to defects under warranty. 9.6 There shall be no warranty for defects arising from the combination or use of the Deliverables with equipment, data or programs not supplied by ST or arising from any alterations or modifications of the Deliverables unless the Partner proves that such use, alterations or modifications did not cause the defect. 9.7 In addition, ST does not warrant for any error, failure or damage caused by improper operation, changed system components, interfaces and parameters, use of unsuitable organization equipment and data carriers, abnormal operating conditions (in particular deviations from the installation and storage conditions), and transport damage. 9.8 If an order concerns the change or supplementation of already existing programs, the warranty shall cover such change or supplementation only. This will not revive or apply to the warranty for the original program. 9.9 ST shall have no support or warranty obligations and disclaims all liability for applications developed based on or supported by the Deliverables and/or distributed by the Partner. The Partner defends, indemnifies and holds harmless ST and its officers, directors, employees, agents and resellers from and against any claims, demands or liabilities based on or arising from, out of or in connection with the creation, use, marketing, licensing, publishing or sale of any compiled forms of code or any other applications based on or supported by the Deliverables. 9.10 The presumption of the defectiveness in accordance with § 924 of the ABGB (Allgemeines Bürgerliches Gesetzbuch - General Civil Law Code) is ruled out. 9.11 LIMITATION OF WARRANTY AND DISCLAIMER. THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. ST SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTY FROM ST, WHETHER GRANTED PURSUANT TO THESE GTCs, OR BY LAW, SHALL BE VOID IF THE DELIVERABLE IS MODIFIED AFTER DELIVERY WITHOUT THE EXPRESS WRITTEN CONSENT OF ST. 10. Limitation of Liability: 10.1 ST and its officers, directors, employees, agents and resellers shall only be liable for damages in case of gross negligence or malicious intent or if life, body or health is harmed. 10.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ST SHALL HAVE NO LIABILITY TO THE PARTNER FOR ANY AMOUNT IN EXCESS OF TOTAL CHARGES TO DATE PAID FOR THE DELIVERABLE UNDER WHICH THE CLAIM AROSE, INCLUDING ANY AMOUNT REPRESENTING DIRECT DAMAGES, INDIRECT OR CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF PROFIT, LOSS OF BUSINESS, INCLUDING LIABILITY, COSTS, OR DAMAGES RELATED TO PRODUCT DEVELOPMENT/ PRODUCTION DELAYS OR STOPPAGES, WARRANTY OR FIELD SERVICE ACTIONS, PRODUCT RECALLS, OR PRODUCT LIABILITY. 10.3 In case of loss of data caused by ST, ST will be liable only for the direct costs of the reconstruction-effort, provided that the Partner has accurately, properly and professionally maintained and backed up its data, but in no event shall such liability be greater than the amount set forth in 10.2. 10.4 ST shall have no liability for any indirect or consequential loss, whether foreseeable or otherwise and including loss of profits, loss of business, loss of opportunity, and loss of use of any Deliverable or the results obtained therefrom. 11. Confidentiality: 11.1 The Partner shall not forward any Confidential Information - no matter what the carrier medium may be - that was received from ST hereunder to third parties to utilize them for any purpose other than the purpose set forth hereunder in the ST binding offer or the ST confirmation letter. In addition to any other rights may have under these GTCs, ST may demand information to be returned in case the Partner breaches this obligation. 11.2 The Partner shall not reproduce, duplicate, copy, sell, or otherwise disclose, or disseminate the Deliverables or other Confidential Information, in any medium except as authorized herein. The Partner may make copies of the Deliverables and other Confidential Information, in machine readable form, only as is reasonably necessary for archival and backup purposes. 11.3 The Partner expressly undertakes, using reasonable efforts not less than the Partner exercises for own confidential materials, to retain in confidence, and to require employees or consultants to retain the Deliverables and other Confidential Information in confidence, and will make no use of such information, except under the GTCs, and only to the extent that such use is necessary to employees or consultants in the course of their employment. 11.4 The Partner shall not release the results of any benchmark of the Deliverables, or of any third parties' products embedded in the delivered items, without ST' prior written approval. 11.5 The provisions of this section shall survive the termination of underlying contracts for a period of five (5) years. 12. Definitions: 12.1 "Software" shall mean all versions, including current, previous, and subsequent versions of all software in software products and firmware in hardware products, together with operating instructions, user manuals, training material, and other documentation as may, in ST' sole discretion, be supplied to the Partner, including any Software in object code or source code format. 12.2 "Support" means technical assistance by phone, fax or e-mail with regard to the regular functions of the Software and does not cover any services in connection with solving specific tasks or the development of specific applications. 12.3 "Subscription" means a bundle of services covering Software updates, patches and Software extensions as specified in the ST binding offer or the ST confirmation letter. 12.4 "Hardware" shall mean a hardware product consisting of one or more hardware units, together with operating instructions, user manuals, training material, and other documentation as may, at ST' sole discretion, be supplied to the Partner. 12.5 "Firmware" shall mean a software package required for the operation of the Hardware, together with operating instructions, user manuals, training material, and other documentation as may, at ST' sole discretion, be supplied to the Partner. Firmware is bound to the Hardware. Firmware is supplied as executable object code. 12.6 "Deliverables" shall mean the deliverables generally referred to in 1.1 set forth and further specified in the ST binding offer or the ST confirmation letter to the Partner, along with any attachment thereto. 12.7 "Confidential Information" shall mean the Deliverables, including any Software in source code or object code format, algorithms, User Manuals, training materials, know-how, trade secrets, and other technical documentation received by the Partner from ST, except any of the foregoing shall not be deemed Confidential Information to the extent such is now (or later becomes) generally known to the public through no fault of the Partner, was lawfully in the possession of the Partner from a source other than the ST at the time of receipt, is independently developed by the Partner before the time of receipt from ST, or is received by the Partner from a source (other than the ST) which has no obligation of confidentiality to the Disclosing Party. 12.8 "PDP" shall mean the Project Development Plan as further defined in 19.2. 13. Cession: 13.1 The Partner may only cede rights from agreements with ST upon ST' written approval. Part II: Software License Agreement 14. License 14.1 ST hereby grants the Partner a perpetual (unless terminated as set forth herein), nonexclusive limited license, subject to the GTCs, to install and use the Software subject to the limitations set forth in this Part II of the GTCs. 14.2 By installing, copying, or otherwise using delivered Software or any update delivered by ST, the Partner agrees to be bound by the GTCs of ST. If the Partner does not agree to the GTCs, the Partner shall not install, copy or otherwise use the Software. The Partner may, however, return the Software to the place of purchase for a refund, in which case ST reserves the right to charge the Partner a handling fee. 14.3 The licensed Software is, and shall at all times remain, the property of ST and/or its Licensor, and the Partner shall have no title, interest, or license therein, except as expressly set forth in this Agreement. 14.4 The license may not be transferred without ST' consent, except to a majority-owned subsidiary, or parent company of the Partner, provided that ST is notified in writing of the transfer and the transferee accepts the GTCs of ST. 14.5 PREEMPTORY LIMITATION. NOTWITHSTANDING ANY PROVISION HEREIN, ST' BINDING OFFER OR CONFIRMATION LETTER OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE SOFTWARE SHALL BE USED EXCLUSIVELY FOR DESIGN, CONFIGURATION AND CODE GENERATION FOR PROJECTS OF RESEARCH AND EVALUATION PURPOSES AND SHALL NOT BE USED FOR ANY DESIGN, CONFIGURATION OR CODE GENERATION IN MASS PRODUCTION PROJECTS. 14.6 The Partner may only use the Software in accordance with the following license types ("License Type(s)"): a) Node Locked License with hardware ID: entitles the Partner to install and use the Software on a specified computer, for which the Partner will provide ST with a specific hardware ID. Transfer of the license from one hardware ID to a new hardware ID shall be subject to a Transfer Fee as quoted in the then-current ST price list. b) Node Locked License with dongle: entitles the Partner to install and use the Software on a specified computer, whereby the dongle is connected to this computer. Transfer of the license from one dongle ID to a new dongle ID shall be subject to a Transfer Fee as quoted in the then-current ST price list. The original dongle has to be returned to ST in advance at partners cost. c) Floating Network License: entitles the Partner to use the Software on any one (1) personal computer at any given time within a network connected to a specific server, for which the Partner will provide ST with a specific hardware ID. The license shall be limited to the specific network server. Transfer of the license from one network server to another network server shall be subject to a Transfer Fee as quoted in the then-current ST price list. The Software shall not be used simultaneously on several personal computers within the network unless the Partner buys the respective number of floating licenses. d) Project License: entitles the Partner to install and use "engineering tool" Software on any number of computers within the Partner computer network and "embedded" Software on the specific microcontroller specified in ST' binding offer or confirmation letter with the compiler version specified in ST' binding offer or confirmation letter, both of which shall be further limited to: (i) use in research and development for the design, configuration, and programming of prototype Electronic Control Units and other prototype components ("Project(s)"), (ii) use on the specific Project specified in ST' binding offer or confirmation letter, (iii) for the duration of the Project License specified in ST' binding offer or confirmation letter, and (iv), subject to all of the foregoing limitations, use by those Partner suppliers specified in ST' binding offer or confirmation letter corresponding or otherwise by ST in writing. The License Type shall be set forth in the Cost Statement enclosed with ST' binding offer or ST confirmation letter. Any change of License Type for previously delivered Software shall be subject to a re-license fee as quoted in the then-current ST price list. 14.7 The Partner may make backup copies of the Software as necessary to support the use of the Software in accordance with the GTCs of ST. The Partner must not remove any copyright, trademark, proprietary rights' disclaimer or warning notice included or embedded in any part of the Software. All copies of the Software shall contain all copyright and proprietary notices as in the original. 14.8 The Partner shall not (a) rent, lease, or loan the Software; (b) electronically transmit the Software over a network except as necessary for Partner's licensed use of the Software as set out above; (c) use run-time versions of third-party products embedded in the Software, if any, for any use other than the intended use of the Software, (d) modify, disassemble, decompile, or reverse engineer the Software, provided, however, that if the Software is located in a jurisdiction whose laws explicitly permit some form of reverse engineering, the Partner may do so solely to the extent so permitted by such law. The Partner agrees to notify ST prior to doing so; (e) transfer possession of any copy of the Software to another party, except as expressly permitted herein; or (f) use the Software in any way not expressly provided for the GTCs or ST' binding offer or confirmation letter. There are no implied licenses. The Partner agrees not to exceed the scope of the licenses granted according to ST' confirmation letter or binding offer. 14.9 Software Licenses to degree-granting educational institutions at ST's educational discount are restricted to use in connection with on-campus computing facilities that are used solely in support of classroom instruction and research activities of students and teaching faculty and shall expressly exclude any use in conjunction with any activity, project, course, development, or research funded directly or indirectly by any for-profit company or industry organization, association, or consortium. Furthermore, the right to use the Software for commercial purposes is expressly excluded. 14.10 Portions of the product may be identified as pre-release code ("Pre-release Code"). Such Pre-release Code is not at the level of performance and compatibility of the final, generally available Software offering. The Pre-release Code may not operate correctly and may be substantially modified prior to its first commercial sale. ST is not obliged to make this or any later version of the Pre-release Code commercially available. The grant of license to use Pre-release Code expires upon availability of a commercial release of the Pre-release Code from ST. AS AN EXPRESS CONDITION TO THE PARTNER RECEIVING PRERELEASE CODE, PARTNER HERSTY ACKNOWLEDGES THAT THE PRERELEASE CODE IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 14.11 In the event that a Pre-release Code contains a separate end-user license agreement, the terms and conditions of such end-user license agreement shall govern the use of the corresponding Pre-release Code. 14.12 If the product is labelled as an upgrade, the Partner must be properly licensed to use the Software identified by ST as being eligible for the upgrade in order to use the product. A product labelled as an upgrade replaces and/or supplements the product that formed the basis for the Partner's eligibility for the upgrade. The Partner may use the resulting upgrading product only in accordance with the GTCs of ST. If the product is an upgrade of a component or of a package of Software programs that the Partner was licensed as a single product, the product may be used and transferred only as part of the single product package and may not be separated for use on more than one computer. 15. Support 15.1 Support means technical support by phone, fax or e-mail with regard to the regular functions of the software. The support services of ST are limited to support for specific problems as arise in connection with the use of the Software. Unless otherwise stated in ST' binding offer or confirmation letter, the Software license granted to the Partner regularly shall include one (1) hour of free Support services provided by ST to the Partner. Further support services are rendered as deemed necessary at the sole and absolute discretion of ST. 15.2 Software licenses granted to degree-granting educational institutions do not include any support services. 15.3 No guarantee is issued and no responsibility is assumed for the solvability of a specific problem. 16. Subscription 16.1 Subscription service means a service bundle covering software updates, software patches and software functional extensions. Unless otherwise stated in ST' binding offer or confirmation letter, the Software license includes Subscription services provided by ST to the Partner for a term of one (1) year, commencing upon delivery of the Software to the Partner, unless the Partner and ST otherwise agree to a longer term within three (3) months of Software delivery. Two (2) month before the termination of the Subscription service ST will offer the renewal of the subscription service to the partner at the then-current ST Subscription service price. The partner acknowledges the renewal offer by written notice, after which the renewal is charged by ST. 16.2 The timing, frequency and the particular release of Software updates and patches shall be at ST' sole and absolute discretion. ST does not guarantee a particular number of Software updates and patches throughout the validity of Subscription agreements. Software updates and patches that are requested by the Partner and delivered by ST as Pre-release Code Versions are charged according to the regular price list or binding offer of ST. 16.3 If the Subscription services are not renewed continuously, the Partner may - at any time renew Subscription services by paying an update fee ("Update Subscription"). The Update Subscription fee shall be calculated on the basis of the cumulated Subscription fees for the period commencing from the prior Subscription expiry date though and up to the expiry date of Update Subscription requested by the Partner, plus 10% of the cumulated Subscription fees as handling fee. The maximum amount for the Update Subscription fee shall be limited to the Software license fee as quoted in the then-current ST price list as of the date of the renewal. 17. Title to Software 17.1 The Partner shall include ST' copyright or proprietary rights' notice on any copies of the Software or associated documentation, including copyright or proprietary rights' notices of third parties that are included on media or in documentation provided by ST. The Partner acknowledges that the Software is the property of ST or its licensors. 17.2 The Partner shall take appropriate actions by instruction, agreement, or otherwise with any persons having access to the Software, in order to fulfil all obligations under the GTCs or the ST' binding offer or confirmation letter. 18. License Termination 18.1 ST may terminate the license by written notice if the Partner is liable for breach of any contractual obligation, including failure to pay any licensee fee due, and the Partner has not cured such breach within 30 (thirty) days of written notification. 18.2 The Partner may terminate this license at any time, for any reason by giving at least 30 days prior written notice to ST. The Partner shall not be entitled to any refund if this license is terminated. 18.3 Upon termination of a Software license for any reason, the Partner shall return to ST the Software, together with any dongles supplied therewith, the User Manual and any other corresponding documentation, and all copies of the whole or any part thereof or, if requested by ST, shall destroy the same and certify in writing to ST that it has been destroyed. 18.4 Any termination of a Software license (how so ever occasioned) shall not effect any accrued rights or liabilities of either party nor shall effect the coming into force or the continuance in force of any provisions hereof which is expressly or by implication intended to come onto or continue in force on or after such termination. Part III: Software and Hardware Development and Integration Services
19. Software and Hardware Development and Integration Services 19.1 Software and Hardware Development and Integration Services include the development of software solutions in embedded computing systems in Electronic Control Units and related hardware solutions such as: a) Software driver development and integration; b) Software function development and integration; c) Application software development and integration; d) Software and hardware studies and concept development (Studies); e) Software product modification, and (Product Modification); f) Software product extension (Product Extension); g) Hardware prototype development; and/or h) Hardware integration services. 19.2 The service Deliverables to be performed by ST shall be defined and specified in a written plan and specification called Project Development Plan (PDP) developed and agreed upon by the Partner and which is part of the ST binding offer or ST confirmation letter or a separate writing acknowledged and agreed to by ST and the Partner. 19.3 The "Project" shall be defined as those service Deliverables as set forth in a specific PDP. 20. Project Development Plan 20.1 The specifications of all relevant Project requirements, work packages, timelines and the project environment are exclusively and conclusively set forth in the PDP. The PDP contains at least the following sections: a) Target of the Project; b) Persons assigned and their roles; c) Customer Requirements and Specifications, including functional requirements and specifications, performance requirements and specifications, maintenance requirements and specifications, and any legal and formal requirements in addition hereto; d) Technical Approach, consisting of a description of new system structure and function, concepts for runtime software, tooling and maintenance; e) Work Break-Down, including: (i) a work package description, consisting of a Project Work Description, Project Work Preconditions (as defined in 20.2), Project Limitations (as defined in 20.3), Project service Deliverables (as defined in 12.6), and Project Success Criteria (as defined in 20.4) and (ii) a corresponding work time schedule which shall commence upon issuance of the Partner purchase order, unless otherwise set forth in the PDP; f) Development Environment, consisting of a description of the hardware and software used in the Project, including detailed names and version numbers; and g) Revision History, documenting the changes in the PDP document together with the author of the changes. 20.2 Project Work Preconditions are those conditions related to the availability of work packages, software, hardware modules or mechanical modules necessary for the completion of the Project. Any partner named in connection with the specific preconditions must provide for these specific project preconditions set forth in the PDP. 20.3 Project Work Limitations are important restrictions on the results of the service Deliverables 20.4 Project Success Criteria define the operational, functional and performance criteria that must be met by the Project service Deliverables. 21. Project Organisation 21.1 The Partner and ST shall jointly set forth a Project outline. The Partner shall name one technical contact ("Project Engineer") and one organizational Project contact ("Project Owner"). ST shall name one Project Manager and one Project Supervisor. 21.2 The Project Manager, the Project Engineer and the Project Owner will establish the PDP in a joint effort. Unless otherwise agreed, the service Deliverables shall include ten (10) hours of Project work to be performed by ST in order to set up the PDP. If more work is needed to set up the PDP, then ST shall charge the Partner with the additional hours according to the rates set forth in the ST' binding offer or confirmation letter. 21.3 The Project Manager, the Project Engineer and the Project Owner will sign a written acknowledgment confirming, agreeing upon, and approving the PDP. If the Partner and ST are unable to agree upon and approve the PDP, then the Partner shall be entitled to cancel the Project, subject to the Partner's payment of charges and reimbursement of costs of ST accrued through and up to the date of cancellation. 21.4 The agreed upon and approved PDP shall be used by ST as its basis for Project quotation, which shall be attached to a corresponding ST binding offer or confirmation letter. 21.5 Unless otherwise set forth in the PDP, Project work shall commence upon issuance of the Partner purchase order. If Project work must commence before issuance of the Partner purchase order, then the Partner must provide ST with a written confirmation, agreeing to pay any and all charges of, and costs incurred by, ST through and up to the date of Partner purchase order issuance prior to ST' commencement of the same. 21.6 ST delivers the Project service Deliverables according to the time schedule and specifications included in the PDP. 21.7 The Partner accepts the Project service Deliverables according to the procedures set forth in the PDP. 22. Changes of the Project 22.1 Partner requests for Project changes (i.e., Project service Deliverables, time frame, etc.) shall be communicated in writing by the Project Engineer or the Project Owner to the Project Manager, whereupon ST shall change the PDP accordingly. All costs arising from such PDP change shall be borne by the Partner. Furthermore, ST is entitled to request additional compensation if such changes require additional Project work. The changed PDP shall be confirmed, agreed upon, and approved in accordance with 21.3. If the Partner and ST are unable to agree upon and approve the changed PDP, then the Partner shall be entitled to cancel the entire Project, subject to the Partner's payment of charges and reimbursement of costs of ST accrued through and up to the date of cancellation. 22.2 If, after having used its best efforts, ST is unable to overcome a severe problem in Project execution which is outside of the reasonable control of ST, then ST may in good faith make a request in writing to the Project Owner to change the PDP, together with a detailed description of the problem and a proposal for changes to the PDP. ST shall be entitled to request additional compensation if such changes require additional Project work. The parties shall work in good faith and use their best efforts to confirm, agree upon, and approve the changed PDP in accordance with 21.3. If the Partner and ST are unable to agree upon and approve the changed PDP, then ST may in good faith cancel the Project, in which case the Partner shall pay charges and reimburse costs of ST accrued through and up to the date of cancellation. 23. Project Termination (Project Cancellation) 23.1 Either party may terminate the contract by written notice to the other if the other party is in breach of its obligations under the contract and, in the event of a breach capable of being remedied, fails to remedy the breach within 30 days of receipt of notice in writing specifying the nature of the breach. 23.2 The Partner may cancel any Project upon written notice to ST, subject to ST' consent to such cancellation, which shall not be unreasonably withheld (any such consent to be given by the Project Manager and the Project Supervisor). In case of such cancellation, all charges of and costs incurred by ST accrued through and up to the date of cancellation, as well as any dismantling charges and costs shall be paid and reimbursed by the Partner. 23.3 ST may cancel any Project by written notice to the Partner, subject to the Partner's written consent to the cancellation, which shall not be unreasonably withheld. In case of such cancellation, all charges of and costs incurred by ST accrued through and up to the date of cancellation, Project as well as any dismantling charges and costs shall be paid and reimbursed by the Partner. 23.4 Furthermore, (a) if work may not be carried out due to any omission on the Partner's part or due to the Partner's subsequent modifications of the specifications or (b) if the Project approach is not feasible, then ST shall be entitled to cancel the Project. In case of such cancellation, all charges of and costs incurred by ST accrued through and up to the date of cancellation, Project as well as any dismantling charges costs shall be paid and reimbursed by the Partner. 23.5 Force majeure, labour conflicts, natural disasters and transport barriers as well as other circumstances beyond ST's control will release ST from the obligation to make a delivery and will allow ST to establish a new PDP and a revised offer. 24. Acceptance 24.1 Upon delivery of the Project service Deliverables, the Partner shall examines the compliance of the same (including software code and documentation) with the specified Deliverables and the Success Criteria as set forth in the PDP and shall, upon compliance, issue a written statement of acceptance to the Project Manager. 25. Invoicing 25.1 ST may invoice in advance 40% of the Project charges and all projected Project costs immediately upon issuance of the Partner purchase order. 25.2 Upon acceptance of the delivered Project service Deliverables, ST may invoice the balance of the unpaid Project charges, together with any Project costs incurred by DECOMSSY in excess of projected Project costs. 25.3 Cost statements do not include VAT, except as explicitly stated in the PDP. 26. Copyright and Use 26.1 Unless otherwise agreed in writing, ST and its licensors shall own all patents, copyrights and trade secrets to the Project service Deliverables and other Deliverables delivered according to the PDP. Upon payment of all Project charges and costs, ST thereupon grants the Partner a license in any Software produced therefrom based on the License Type set forth in the PDP and subject to the terms, conditions and limitations set forth in Part II of the GTCs in its entirety, and further limited to the number of licenses obtained for simultaneous use on several workstations as set forth in the PDP. 26.2 Any distribution of the Deliverables to any third party by the Partner shall be prohibited. By participating in the development of the Deliverables, the Partner will not obtain any rights other than the limited license set forth in Part II of the GTCs based upon the License Type specified in the PDP. 26.3 Should it become necessary to disclose Software interfaces to the Partner to make Deliverables interoperable, then the Partner shall first request the same from ST for an additional charge. If ST does not do so and if the Deliverables are decompiled, then such de-compilation shall be used only for the limited purpose of making Deliverables interoperable. Any abuse will result in the Partner's liability for damages. Part IV: Delivery of Hardware including Firmware 27. Scope of Delivery 27.1 Hardware and Firmware shall perform functions and operations as exclusively and conclusively set forth and specified in the "User Manual". 27.2 Documentation and User Manuals shall be delivered in in electronic readable form on an electronic data carrier or downloadable from a ST server. 28. Firmware License 28.1 ST hereby grants the Partner a perpetual (unless terminated as set forth herein), nonexclusive limited license to install and use the Firmware on the supplied Hardware based on the License Type set forth in the ST binding offer or confirmation letter and subject to the terms, conditions and limitations set forth in Part II of the GTCs in its entirety. 28.2 Firmware shall be used only on the Hardware tested therefore and delivered therewith. 29. Hardware Ownership 29.1 Hardware remains property of ST until all claims of ST against the Partner in connection with the underlying contract are fulfilled. Following to full payment of the agreed remuneration to ST, ST transfers all property rights regarding Hardware to the Partner. 30. Delivery and Assembling 30.1 ST delivers Hardware and Firmware in a preassembled status in appropriate packing at the Partner's cost. The Partner is responsible for unpacking, remaining assembling and/or installation. 31. Repair 31.1 The Partner shall make all necessary preparations for ST' carrying out repair installation services outside the warranty set forth in 9. In particular, the Partner shall be obliged to send back hardware to ST with all costs of the transport are to be covered or reimbursed by the Partner. 31.2 The Partner will be charged for all repair and installation work according to the then-current ST price list. Part V: Training Services 32. Scope 32.1 ST will provide Training in accordance with its usual professional standards, the content of which shall be at the sole discretion of ST, and grants to the Partner a non-assignable, royalty free non-exclusive license to use the training materials and the information disclosed therein. However, ST will retain Copyright in any Training materials and Intellectual Property Rights and ownership in any information disclosed in the Training materials. 33. Cancellations 33.1 The Partner shall register all attendees at least fourteen (14) days prior to the schedule date of the event. The Partner shall be subject to the following cancellation fees in the event attendance is cancelled: (a) More than ten business days prior to the start date of the Training - a handling fee of EUR 75,-- will be charged; (b) 10 or less business days prior to the start date of the Training - the complete Training fee will be charged. 33.2 The Partner is entitled to name a third person to participate in the Training in his or her place in which case no cancellation fee will be charged. 33.3 Participations and Cancellations are to be made in writing, preferably by fax. 33.4 The Partner and the attendees shall responsible all any travel, food or boarding costs incurred in relation to Training attendance. 33.5 ST reserves the right to cancel a course up to seven (7) days prior to the event for any reason. In this case registered participants may only claim their participation fee. No compensation claims beyond that amount will be honoured, including those for any travel, food or boarding costs incurred. 34. DISCLAIMER OF WARRANTY 34.1 TRAINING SERVICES ARE PROVIDED WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. ST DOES NOT WARRANT, GUARANTEE AND MAKE ANY REPRESENTATION REGARDING THE INFORMATION PROVIDED VIA THE TRAINING SERVICES (WRITTEN OR ORAL) INCLUDING WITHOUT LIMITATION THE CORRECTNESS ACCURACY OR RELIABILITY OF SUCH INFORMATION, OR ITS COMPLETENESS OR SUITABILITY FOR APPLICATIONS IN THE PARTNER'S BUSINESS. THE PARTNER ACKNOWLEDGES AND AGREES THAT ST' SOLE OBLIGATION IS TO PROVIDE THE TRAINING SERVICES THAT THE PARTNER HAS REGISTERED FOR AND ST SHALL HAVE NO OBLIGATION TO PROVIDE ANY CONTINUED TRAINING SUPPORT OR ADDITIONAL CLASSES. Part VI: Use of ST Internet Page 35. Contents 35.1 The contents of the ST website are legally protected. All rights that are not granted expressly shall be reserved. ST shall permit the Partner to use the website for personal use and the Partner may access download, display, run, save and print the ST web pages. 35.2 Any duplication, processing, translation, transfer or distribution, either in part or in full or in whatever form, shall not be permitted unless ST has given its written approval. Press-releases and other documents that are marked as public may only be used in public notifications if the source of the information used is quoted in the notification. 36. Liability 36.1 ST has taken every reasonable amount of care to ensure the accuracy of the information on ST´ website. Therefore, ST shall assume no express or implicit warranty of any kind in connection with the use of the website, unless ST specifically states otherwise on any of its websites, or unless ST has acted in gross negligence or wilful misconduct. 36.2 ST shall not be held liable, in case any of the websites or the servers providing these websites, shall not be free from viruses or any other harmful elements. ST has used diligent care to ensure that the websites had been free of viruses or any other harmful events at the time ST had delivered them to the providing entity. 36.3 ST shall not guarantee that the website shall function without interruption. This shall include but is not limited to the warranty for legal imperfections in title, intactness, marketability or the suitability for certain purpose with regard to the availability accuracy reliability or the content of the website. 37. Data 37.1 Should the Partner deliver person-based information or data, i.e., such information or data, with which the identity of a person or entity can be identified, or should the Partner deliver such information or data for ST to provide them on the ST website, the Partner hereby agree that, ST shall be entitled to process such information or data in accordance with the applicable laws and statutes. Details shall be set out in ST´s protection of data privacy declaration. 38. Links 38.1 In case the websites provide links to other websites, which are not under the control of ST, ST shall in no event be held liable for the contents of such other websites in any way. ST shall provide such links for convenience only. 38.2 The supplier(s) of websites, to which ST´ websites provide links to, shall solely be responsible for the use of any trademarks, whether registered or not, which they may use on their websites. 39. Use of Information 39.1 Partner shall only be entitled to use, copy or distribute the information provided on ST´ websites in unmodified form. In particular, Partner must not remove any copyright symbols and notices contained on the websites. 39.2 All mentioned product names on this website are either registered or non-registered trademarks of their respective owners. ST does not grant any rights of use on such trademarks to Partner. 39.3 ST reserves the right to changes or update the websites with respect to the information contained on them at any time without giving prior notice; in particular ST is entitled to charge prices for products that have at any time been offered for free at the ST homepage. |